Hearn v. Short (327 F. Supp. 33, 1971)

MEMORANDUM AND ORDER

Before INGRAHAM, Circuit Judge, and SINGLETON and BUE, District Judges.

INGRAHAM, Circuit Judge:

Plaintiff, Roy Hearn, d/b/a Martinique Lounge, sues the defendants H. B. Short, Chief of Police of the City of Houston; Houston Police Department; C. V. Kern, Sheriff of Harris County; Harris County Sheriff’s Department; Texas Department of Public Safety; Texas Rangers and the Texas Liquor Control Board, seeking a temporary restraining order and preliminary and permanent injunctive relief enjoining the above named defendants from enforcing, and prosecuting violations of Articles 667 — 19B(b) and (g) and 607(18) of the Texas Penal Code and Article II § 36-48 of the City of Houston Municipal Code. Plaintiff additionally seeks a declaratory judgment that the enumerated Articles of the Texas Penal Code and the City of Houston Municipal Code are void for vagueness and impermissible overbreadth. Plaintiff invokes the jurisdiction of this court pursuant to Title 28 U.S.C. §§ 2281 and 2284 and Title 42 U.S.C. § 1983.

The Martinique Lounge is joined in this action by the owner and operator of another lounge, the My-O-My Club, which was permitted to intervene as a party plaintiff.

Since the plaintiff prays for injunctive relief from the operation and enforcement of state criminal statutes having general application and allegedly violative of the Federal Constitution, a statutory three-judge court was convened pursuant to Title 28 U.S.C. § 2281, et seq.

A succinct summary of the pertinent facts preceding the joining of issue is as follows: On December 17 and again on December 19, 1970, the Martinique Lounge was “raided” by Houston police officers and other authorities, and certain employees therein were arrested and charged with violation of the State vagrancy statute, Note 2, supra, and violation of the city ordinance prohibiting “indecent dancing”, note 3, supra. On December 22, 1970, plaintiff made application to a single judge of this district for a temporary restraining order enjoining the defendants from enforcing the provisions of the enumerated statutes, which application was granted.

On January 1, 1971, authorities “raided” the My-O-My Club and as a result thereof the manager, assistant manager and various employees were arrested and charged with violation of Article 667-19B(b) and (g) of the Texas Penal Code, Note 1, supra. After denial of an oral request for a temporary restraining order presented to one of the judges of this panel, the My-O-My Club sought and received, on January 4, 1971, permission from the three-judge panel to intervene in the main suit as a party plaintiff. Accordingly, the temporary restraining order previously granted was extended and enlarged to include the My-O-My Club within its command.

A further recitation of the factual history of the litigation is unnecessary for in cases such as the one at bar — where the State’s criminal legal machinery has been set in operation prior to the plaintiff’s seeking of redress in Federal Court — the Supreme Court has afforded the lower Federal Courts a polestar by which to guide the exercise of their equitable powers — one which is dispositive of the issues presented herein.

On February 23, 1971, the Supreme Court handed down its decision in Younger v. Harris, 401 U.S. 37, 91 S.Ct. 746, 27 L.Ed.2d 669 (Feb. 23, 1971) and five companion cases — the dominant theme of which was the propriety of a Federal district court intervening in pending State criminal prosecutions by way of injunctive and declaratory relief. Predicated upon the fundamental policy against Federal interference with State criminal prosecutions, the Court in Younger, supra, made it abundantly clear that failing proof of bad faith prosecution, harassment or other unusual circumstances evincing irreparable injury which is “both great and immediate”, a Federal district court entertaining a challenge to a State penal statute alleged to be facially unconstitutional should, on the basis of comity and the principles of federalism, abstain from interfering in the State criminal prosecution, m esse at the time the Federal suit is filed. The corollary of course is that:

“The accused should first set up and rely upon his defense in the state courts, even though this involves a challenge of the validity of some statute, unless it plainly appears that this course would not afford adequate protection.”

Fenner v. Boykin, 271 U.S. 240, 243-244, 46 S.Ct. 492, 493, 70 L.Ed. 927 (1926), quoted in Younger, supra, 401 U. S. at 45, 91 S.Ct. at 751.

Having reviewed the entire record in this case, we are convinced that neither plaintiff nor intervenor have demonstrated irreparable injury as that concept is articulated in Younger, supra, and its companion cases, nor can either point to a high probability of infringement of a constitutional right which is incapable of being fully adjudicated and protected in defense of the State criminal prosecutions.

We reiterate that the State’s criminal processes were set in operation as to both the plaintiff and the intervenor pri- or to the entry of each through the portals of the Federal courthouse. Moreover, an accused may not avoid the result mandated by the Supreme Court in circumstances such as these by pleading guilty to the State charge without raising his constitutional defense, thereby bypassing the opportunity available in the State forum — for such procedural manipulations not only violate the spirit of Younger but are unavailing. The controlling factor is whether State criminal proceedings are pending at the time Federal relief is sought, a circumstance clearly evident in the instant case.

As a final matter we note that the plaintiff additionally seeks injunctive relief from the operation and enforcement of a municipal ordinance, Note 3, supra. That consideration of such an ordinance local only in character and scope is without the purview of this three-judge court is clear. Perez v. Ledesma, 401 U.S. 82, 91 S.Ct. 674, 27 L.Ed.2d 701 (February 23, 1971); Moody v. Flowers, 387 U.S. 97, 87 S.Ct. 1544, 18 L.Ed.2d 643 (1967). As such, we make no determination as to this aspect of the case and remand that claim for relief to the single District Judge for his action and disposition.

Accordingly, it is ORDERED as follows:

(1) The temporary restraining order heretofore entered on December 22, 1970, and thereafter extended pending resolution of the merits is hereby dissolved, vacated and set aside;

(2) The prayer for injunctive and declaratory relief sought by plaintiff and intervenor as to Articles 667-19B(b) and (g) and 607(18) of the Texas Penal Code is hereby denied and the claims for relief are dismissed at plaintiff’s and intervenor’s cost.

(3) The claim for relief from the operation and enforcement of Article II § 36-43 of the City of Houston Municipal Code is remanded to a single District Judge for his action and disposition.

. Article 667-19B makes criminal lewd or obscene conduct at places licensed to serve liquor:

For the purposes contemplated by this Act, conduct by any person at a place of business where the sale of beer at retail is authorized that is lewd, immoral, or offensive to public decency is hereby declared to include but not be limited to the following prohibited acts; and it shall be unlawful for any person engaged in the sale of beer at retail, or any agent, servant or employee of said person, to engage in or to permit such conduct on the premises of the Retailer:

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(b) The exposure of person or permitting any person to expose his person.

(g) Permitting entertainment, performances, shows, or acts that are lewd or vulgar.

. Article 607 § 18 prohibits and penalizes vagrancy and prostitution:

All persons who reside in, enter or remain in any house, place, building or other structure, or who enter or remain in any vehicle, trailer, or other conveyance for purpose of prostitution, lewdness, or assignation.

. Sec. 36-43. Indecent dancing prohibited.

No person shall dance and no licensee or operator of any dance hall shall permit or suffer any person to dance any indecent or immodest dance therein. (Code 1958, § 25-68)

SINGLETON, District Judge

(specially concurring):

I feel reluctantly compelled to follow the recent holdings of the Supreme Court in Younger v. Harris, supra, and its companion cases. Those cases and the various opinions written in connection therewith have created in my mind a legal caldron with respect to the constitutional questions discussed, particularly with reference to proper injunctive and declaratory relief by a federal three-judge court. If as a federal district judge I could properly adopt the opinion of Mr. Justice Brennan with whom Mr. Justice White and Mr. Justice Marshall joined, concurring in part and dissenting in part, in Perez v. Ledesma, 401 U.S. 82, 93, 91 S.Ct. 674, 678, 27 L.Ed.2d 701 (1971), I would do so and meet the issues raised in the case before us head-on. Because there are no pending criminal charges against the My-O-My Club, declaratory relief, as pointed out by Mr. Justice Brennan, would seem historically appropriate. However, since dismissal is compelled on the bases pointed out in this court’s majority opinion, no precedential value could be gained by further discussion of the substantive issues involved. However, I do have strong feelings that the first amendment, and its proscription against censorship, applies to the legal issue of obscenity (if in fact there is any such legal concept) and in this connection the standards set forth in Redrup v. New York, 386 U.S. 767, 87 S.Ct. 1414, 18 L.Ed.2d 515 (1967) should be implemented in cases such as the one before us. See also Blount v. Rizzi, 400 U.S. 410, 91 S.Ct. 423, 27 L.Ed.2d 498 (1971); United States v. O’Brien, 391 U.S. 367, 377, 88 S.Ct. 1673, 1679, 20 L.Ed.2d 672, 680 (1968).

BUE, District Judge

(concurring specially) :

I fully concur in the result reached and the reasoning employed in the Court opinion in this case. However, while such dismissal can be dispositive of the bare legal issues before this Court, it scarcely comes to grips with the malady which has spread at an ever-increasing rate in recent years — the use and abuse of First Amendment protection under the Constitution as a vehicle for the commercial distribution of obscenity in its various forms. Consequently, I feel compelled to write in this instance with a somewhat broader sweep, not to render an opinion where none is called for, but to draw together into some cohesive and orderly pattern for assessment the many and varied facets, both legal and philosophical, which have contributed to an endless confusion in this area of the law. Such an appraisal is not eased by some form of antiseptic resume of the circumstances of the case in order to make for more palatable reading. On the contrary, if the issue of obscenity is to be weighed fully and fairly, the facts raising such an issue warrant full factual recitation in their proper context without regard for the sensitivities of the reader.

I.

FACTS

The stipulated facts as to the Martinique are as follows: the lounge is located at 404 Westheimer Avenue in Houston. It has operated for sometime at that location selling beer and wine under a Texas liquor license to customers at competítive prices without entertainment. In 1970, live entertainment in the form of nude dancers was installed. Weekly advertising in the Houston Chronicle and the Houston Post took the following form:

On December 17, 1970, while on a routine investigation of the premises, uniformed police officers were informed of the presence of a nude female inside the Martinique Lounge. Two officers entered the lounge and observed a dancer “clad in boots, bikini bottoms and bikini tops” (Stipulation, page 1) dancing to a jukebox tune. Further observations by the officers revealed the dancer exiting, disrobing, and reappearing on the now dimly-lit stage in front of a mirror backdrop, nude but for her boots. Another dance ensued to a fast rock-and-roll tempo, following which the dancer left the stage and dressed in a nearby dressing room. The dances so observed were of the traditional “go-go” variety, and no splits, squats, touching of the sexual organs, or simulation of intercourse or climax occurred (Stipulations, page 2).

The evening’s entertainment culminated in the arrest of certain employees of the Martinique for violations, of the aforementioned statutes.

On the evening of December 19, 1970, a quite similar sequence of events transpired, again resulting in arrest (Stipulation page 2 and 3).

The My-O-My Club is located at 534 Westheimer Avenue in Houston. It was only recently opened in November, 1970, for the licensed sale of alcoholic beverages and live entertainment of the customers featuring nude dancers. The admission charge was $3.00 with the cost of beer and wine being $1.55. The My-O-My Club was advertised regularly in the Houston Chronicle with the advertising taking the following forms:

On the night of December 31, 1970, Officer J. G. Perez of the Houston Vice Squad was assigned to work the club under cover. The My-O-My features a raised stage with a pole in the center, the stage being surrounded by numerous abutting tables. On stage at the time the officer arrived was a female dancer, nude except for a pair of gold slippers. In lieu of any particular dance style, she paced the floor to the rhythm of the music, stopping to accept money from the club patrons seated around the stage, and placing it in a large pitcher labeled “Geni”. In deposition testimony, Officer Perez noted the following activities:

Q. [Mr. Wayne Paris, City of Houston Legal Department]

And without going too deep into a narrative, what would actually occur when they did place money in front of them?

a. [Officer Perez]

She would then approach that one certain customer and then she would lay down on the floor in front of him and then she would simulate all kinds of — simulate sexual intercourse is what she was doing.

q Did she have any clothes on at this time, other than the gold slippers, that you mentioned before?

A-No clothes. Still completely nude.

Q. Now, you say simulate sexual intercourse. Could you define that a little more? Could you be a little more specific? Was she spreading her legs apart or just what as far as body movements are concerned?

A. She would spread her legs apart and move herself up and down. She would place her legs on the customer’s shoulder — placing one leg on each shoulder of the customer and then she would pull herself up towards the customer’s face with her legs and would work herself to where her privates or her vagina was about six or eight inches away from the customer’s face.

Q. How many customers did she do this with?

A. Oh, at least six of the customers that had placed money up there that she did that to.

Q. And you observed all six?

A. Yes. Also I observed her at other times when the customers would, out of the beer bottle they were drinking, they would take out a dollar and stick it in the neck of the bottle ana then she would walk up to where this particular customer was and she would lay down on the floor and with her legs strattle [sic] the bottle, and then she would work herself up to the beer bottle with them, and then with her vagina would pull the dollar out of the beer bottle.

Q. Did you observe any other kind of activity of this sort that you can recall ?

A. Well, there was a pole in the center of the stage that looks like a building support and she would go up the pole and simulate her body as if again, in intercourse.

At 10:00 p. m. the officer left, returned to the Vice office and began his investigation report.

The following night Officer Perez again visited the club, still under cover, and observed much the same activity, with the exception of two noteworthy events: the presence of several “drunks” who “kept hollering at the girls to take it off,” (Deposition of Officer Perez, page 20) and an alleged attempt by one of the patrons at oral sodomy. At 10:00 the club was raided by the vice squad, who proceeded to take the names of the patrons, arresting several who appeared intoxicated, after a short scuffle. Mr. Wells, the owner, waitresses and dancers also were arrested.

At the hearing before the three-judge court, the above referred to stipulation was introduced by counsel for Martinique. The live testimony concerning the dance related solely to the circumstances of the arrest at the My-O-My Club. The offer of My-O-My’s counsel to view the dance at the club was declined by the Court in view of the detailed deposition testimony of the arresting officer as well as that of one of the dancers which, while by no means as explicit, did not directly refute the arresting officer's version. Subsequent live testimony of the arresting officer at the hearing as well as that of a corroborating witness from the Texas Alcoholic Beverage Commission, Mr. David Floyd, confirmed in all material respects the nature of the dance and circumstances under which it was performed. (Tr. at 51-53).

Testimony at the hearing also included that of the head of the Vice Squad of the Houston Police Department, Lt. J. D. Belcher, who testified as to the methods employed by the Vice Squad in obtaining procedural guidelines to be followed in making such arrests. (Tr. at 80-83, 86, 107). These included frequent contacts with the State District Attorney and his legal staff relative to what facts and circumstances might constitute a violation under State law which could be successfully prosecuted. This testimony clearly detailed the coordinated efforts of the law enforcement officers and eliminated any sound contention that the actions of the arresting officer and his superiors were arbitrary and without the benefit of the considered opinion of the District Attorney’s office. (Tr. at 80-83, 86).

On December 22, 1970, a temporary restraining order was issued, enjoining any further enforcement of the Texas Penal Code Ann. arts. 667-19B (b) and (g) and 607 § 18 (1954), and § 36-43 of the City of Houston Municipal Code against the Martinique, its owner and employees until January 1, 1971. The My-O-My Club was permitted to intervene on January 5, and was similarly protected by the order as extended.

II.

SCOPE OF INQUIRY

The scope of the Court's inquiry must extend not only to a determination of whether the dances as presented constituted obscenity vel non, which requires considerable case analysis, but also must include a determination of whether the Texas statutes which purport to regulate obscenity are sufficiently precise so as to satisfy constitutional requirements including the providing of adequate warning, a satisfactory standard of action for the unwary, Winters v. New York, 333 U.S. 507, 509, 68 S.Ct. 665, 92 L.Ed. 840 (1948); Cantwell v. Connecticut, 310 U.S. 296, 308, 60 S.Ct. 900, 84 L.Ed. 1213 (1940), and are procedurally sound under the Freedman doctrine.

The first area of inquiry is not an easy one. As was pointed out by Mr. Justice Harlan in Interstate Circuit, Inc. v. Dallas, 390 U.S. 676, 88 S.Ct. 1298, 20 L.Ed.2d 225 (1968), anyone who undertakes to examine the Supreme Court’s decisions since Roth v. United States, 354 U.S. 476, 77 S.Ct. 1304, 1 L.Ed.2d 1498 (1957) which have held particular material obscene or not obscene would find himself in utter bewilderment. Chief Justice Warren and Mr. Justice Clark further conceded in Jacobellis v. Ohio, 378 U.S. 184, 84 S.Ct. 1676, 12 L.Ed.2d 793 (1964), that Supreme Court opinions since Roth have failed to furnish guidelines to lower courts. In thirteen decisions handed down by the Court between 1958 and 1968 there have been fifty-five separate opinions expressed by the Justices. Adler v. Pomerleau, 313 F.Supp. 277, 284 (D.Md.1970). In three of the critical decisions of the Court which will be discussed below, there are fourteen separate opinions. The obvious consequence of such a splintering of viewpoints on the obscenity issue has been that there are very few decisions which are joined in by a majority of the Court so as to constitute binding legal precedents for lower courts to follow.

The law as to what constitutes a binding legal precedent of the Supreme Court is important. Some cases have referred to its significance, but there is no way to assess to what extent this point has received consideration in the vast majority of the lower court opinions with their divergent views. It is a well established rule that a majority of the Court rendering a decision must concur, not only in the result, but also in the opinion or legal reasoning for that result, before the case can be considered within the rule of stare decisis.

In 20 Am.Jur.2d Courts § 195 the full breadth of this significant rule is well stated:

Although there are cases indicating that a decision by a divided court does not have stare decisis effect, and cases to the effect that a mere majority decision does not have the weight of a unanimous decision, the prevailing view seems to be that a decision not rendered unanimously does not by this lack of unanimity lose its character as a precedent within the scope of stare decisis, provided the required majority of the court concurred in the decision. A decision by an equally divided court does not establish a precedent required to be followed under the stare decisis doctrine. And where the members of the court unanimously or by majority vote reach a decision but cannot, even by a majority, agree on the reasoning therefor, no point of law is established by the decision and it cannot be a precedent covered by the stare decisis rule. (Footnotes omitted)

More specifically, an opinion is not authoritative or controlling as to any principle of law where only three judges concurred in the opinion, three others dissented and another concurred only in the decision. United States v. Pink, 315 U.S. 203, 216, 62 S.Ct. 552, 558, 86 L.Ed. 796 (1942). In Pink the Court opinion by Mr. Justice Douglas stated:

Nor was our affirmance of the judgment in that case by an equally divided court an authoritative precedent. While it was conclusive and binding upon the parties as respects that controversy * * *, the lack of an agreement by a majority of the Court on the principle of law involved prevents it from being an authoritative determination for other cases. Hertz v. Woodman, 218 U.S. 205, 213, 214, 30 S.Ct. 621, 622, 54 L.Ed. 1001.

III.

THE CASE LAW ON OBSCENITY

The language of the First Amendment that “No law shall be passed abridging freedom of speech or of the press * * * ” has not been restricted to its literal meaning in Court decisions. The term “speech” as an individual expression or communication of ideas has been assumed prima facie to enjoy constitutional protection. But as one moves from pure utterances by an individual in the direction of action or conduct, the line of demarcation as to what is protected loses clarity and eventually its constitutional mantle. Thus, a showing that the expression involved is “speech plus” or symbolic speech resulting in the activity being subject to a substantial governmental interest can result in a loss of such protection, even though such regulation incidentally curtails or impinges upon the First Amendment. See United States v. O’Brien, 391 U.S. 367, 88 S.Ct. 1673, 20 L.Ed.2d 672 (1968). Of course, once the activity can be characterized unqualifiedly as conduct outside the First Amendment frame of reference, it is properly regulated under the “police power” of the state.

Although there is reason to have serious doubts that the activities in question in this case, the nude dancing and related activities in their respective settings in the cocktail lounges, qualify in any sense for constitutional protection as a form of speech expressing or communicating ideas, this is the thesis of the plaintiffs in this case. Consequently, this position will be explored in some depth to determine its legal validity vel non. However, even if it is assumed prima facie that the dances are some form of speech, this protected status is not absolute and can still be lost upon a showing of obscenity, the definition of and presence or absence of which constitute the nub of this lawsuit.

Another aspect of this complex area of the law merits preliminary comment. First Amendment protection has been extended not only to communications of political import, but also to expressions intended for amusement and entertainment. Winters v. New York, 333 U.S. 507, 510, 68 S.Ct. 665, 92 L.Ed. 840 (1948); Weaver v. Jordan, 64 Cal.2d 235, 242, 49 Cal.Rptr. 537, 542, 411 P.2d 289, 294 (1966).

[T]he First Amendment reaches beyond protection of citizen participation in, and ultimate control over, governmental affairs and protects in addition the interest in free interchange of ideas and impressions for their own sake, for whatever benefit the individual may gain.

In re Giannini, 69 Cal.2d 563, 72 Cal.Rptr. 655, 660, 446 P.2d 535, 540 n. 3 (1968). Accordingly, whatever the medium, and whether the communication is a humorous interpretation of the foibles, a sensitive expression of the beauty, or a cryptic comment on our political, social or sexual mores, the communication prima facie warrants protection. But when the material imparted is salacious and sensationalist for the sake of being so — designed to appeal to that “prurient interest” which is discussed at such length in the cases — its privileged status is lost. It has also been held that the element of commercial profit is no basis for depriving material of constitutional protection. However, when the purveyors of such material commercially exploit or deliberately represent their'communications as appealing to the prurient interest of its intended and probable recipient group, that fact may be decisive in the determination of obscenity.

In terms of the factual application of First Amendment protection, there has been a gradual expansion. The literal terminology “freedom of speech and press” has included books, picture magazines, and still photographs. It has been held to apply to motion pictures, although with some qualifications. More recently, lower federal courts and state courts have considered the issue of constitutional protection of the live theater and topless dancing in cabarets. The present fact situation is but another mutation which serves to raise the question once again as to where the constitutional line should be drawn, or if the attitude of our society has now reached the point where none should be drawn at all. This philosophical cleavage cannot be ignored in this area of the law, and, indeed, it manifests itself most sharply in the respective attitudes of the members of the Supreme Court as reflected in the Court’s decisions. While these pronouncements have left lower courts in a state of bewilderment no satisfactory understanding of the extent of the futility facing lower courts in coping with this problem can be obtained without some analysis of the present legal dilemma and how it came about. At the risk of prolonging this opinion unduly, I reach the conclusion that the complete panorama of this area of the law can be discerned only through a chronological review of certain of the major court pronouncements, particularly those of the Supreme Court since 1957.

Commencing with the English ease of Regina v. Hicklin, L.R. 3 Q.B. 360 (1868), the jurisprudence in this country pertaining to obscenity has followed a controversial course. Hicklin stood for the proposition that material could be judged merely by the effect of an isolated excerpt upon particularly susceptible persons. This rule was vulnerable in two obvious areas, the use of “those whose minds are open to such immoral influences” as a measure of obscenity instead of referring to the average person in the community, and the employment of a standard of evaluating obscenity by looking to an isolated segment of the material instead of judging the work in its entirety. These factors were considered and resolved some fourteen years ago in the landmark case of Roth v. United States, 354 U.S. 476, 77 S.Ct. 1304, 1 L.Ed.2d 1498 (1957).

A.

ROTH v. UNITED STATES

The celebrated Roth case, a (5-1-1) (2) opinion of the Court, was actually two cases, Roth dealing with the constitutionality of a federal statute regulating the mailing of obscene matter and the other, Alberts v. California, pertaining to a state statute regulating the sale and advertising of obscene books. Roth squarely confronted the Supreme Court with the issue of whether obscenity is an expression or utterance within the area of protected speech and press. The Court held that it was not. With Mr. Justice Brennan writing the opinion, the test of obscenity was held to be “whether to the average person, applying contemporary community standards, the dominant theme of the material taken as a whole appeals to prurient interest”. The definition of prurient interest set forth in Roth is contained in a footnote wherein the Court states that:

We perceive no significant difference between the meaning of obscenity developed in the case law and the definition of the A.L.I., Model Penal Code, § 207.10(2) (Tent. Draft No. 6, 1957), viz:

< * * * A thing is obscene if, considered as a whole, its predominant appeal is to prurient interest, i. e., a shameful or morbid interest in nudity, sex, or excretion and if it goes substantially beyond customary limits of candor in description or representation of such matters. * * * ’

Also contained in the footnote are more basic, graphic definitions such as “material having a tendency to excite lustful thoughts” and “itching; longing; uneasy with desire or longing”.

In discussing the concept of obscenity, the Court opinion stated that “[A] 11 ideas having even the slightest redeeming social importance * * * have the full protection of the guaranties * * *. But implicit in the history of the First Amendment is the rejection of obscenity as utterly without redeeming social importance.”

The above language seems innocent enough, but it has been a subject of endless dispute, as will appear in the subsequent discussion of Jacobellis v. Ohio and A Book Named “John Cleland’s Memoirs of a Woman of Pleasure” v. Massachusetts. With these observations made as to ideas, the Court in Roth, 354 U.S. at 485, 77 S.Ct. at 1309, cited with approval the following language in Chaplinsky v. New Hampshire, 315 U.S. 568, 62 S.Ct. 766, 86 L.Ed. 1031:

There are certain well defined and narrowly limited classes of speech, the prevention and punishment of which have never been thought to raise any Constitutional problem. These include the lewd and obscene * * *. It has been well observed that such utterances are no essential part of any exposition of ideas, and are of such slight social value as a step to truth that any benefit that may be derived from them is clearly outweighed by the social interest in order and morality * * *. (emphasis supplied)

From the above quotations contained in Roth including that from Chaplinsky, it is clear that ideas with the slightest redeeming social importance are constitutionally protected, but that obscene utterances are not ideas in the constitutional sense, even though they may have some slight social value in ascertaining truth. To determine obscenity vel non according to Roth, the prurient interest test is applied. Once material is found to be obscene under such a test, it no longer is a constitutionally protected utterance and is consequently viewed as utterly without redeeming social importance.

In subsequent cases, the Roth test of prurient interest has had engrafted upon it at least two additional prongs or tests to be used to determine obscenity. These are (1) that the material is patently offensive as affronting contemporary community standards and (2) that the material is utterly without redeeming social value. It is the latter test which presumably finds its genesis in the above quoted language in Roth. Apart from other criticisms of the social importance or social value test that can be made, the above cited language in Roth and Chwplinsky does not support such a test. “Utterly without redeeming social importance” is the nature of the conclusion reached following the determination that matter is obscene; it is not the language of a separate test itself to be used to ascertain obscenity. To utilize an obvious conclusion as such a test is to indulge in a non-sequitur in which the premises and conclusion are inverted. The crucial significance of this interpretation of the Roth and Chaplinsky rationale of obscenity will become more apparent, as the evolution of this body of law and the contributions of certain subsequent Supreme Court cases, particularly Memoirs, are analyzed.

B.

MANUAL ENTERPRISES, INC. v. DAY

The other test engrafted upon Roth in which, in addition to the prurient interest inquiry, the Court or jury ascertains that “the material is patently offensive as affronting contemporary community standards,” stems from the subsequent decision of Manual Enterprises, Inc. v. Day, 370 U.S. 478, 82 S.Ct. 1432, 8 L.Ed.2d 639 (1962). Admittedly more of a variant of the Roth standard than a separate and distinct test, it is also true that this was not a majority decision of the Court. The Justices again were unable to agree on the grounds for reversal, splitting (2-3-1) (1) with two Justices not participating in the decision. A Federal mail statute was involved, the material sent through the mails being composed primarily, if not exclusively, of magazines for homosexuals containing nude male photographs. Mr. Justice Harlan, with the concurrence of Mr. Justice Stewart, announced the judgment of the Court with three other Justices concurring on other grounds.

After recognizing that Roth established the single test of “prurient interest”, Mr. Justice Harlan pointed out that a necessary concurrent test was required if, in addition, the material goes “substantially beyond customary limits of candor in describing or representing such matter.” This is the same language used to define obscenity by the A.L.I. Penal Code which was approved in Roth in a footnote. This test was given a shorthand rendition of “patent offensiveness” in Manual Enterprises, and both prurient interest and patent offensiveness were seen as necessarily joining or coalescing before the challenged material could be found to be obscene under the Federal statute. Although it was observed that in most instances material which is patently offensive will also usually carry the requisite “prurient interest” appeal, this situation did not occur in Manual Enterprises. The magazines with nude male photographs catered only to homosexuals, a particular class of persons, which precluded the broad application of the “contemporary community standard” formula utilized under the “prurient interest” test in Roth to ascertain obscenity. When such a special class was involved which constituted less than the community as a whole, an independent inquiry as to “patent offensiveness” was thought to be necessary. Thus, while the two tests overlapped or were indistinguishable in most instances, it was felt that both necessarily had to be satisfied under the facts of Manual Enterprises, Inc. v. Day. As a consequence, a second test of obscenity was referred to in later Supreme Court opinions, despite the fact that it lacked the sanction of a majority of the Court.

C.

JACOBELLIS v. OHIO

The next case of significance, Jacobellis v. Ohio, involved a conviction under a state statute for the exhibition of an obscene motion picture. Six of the Justices voted for reversal, but again they could not agree upon an opinion, splitting (2-2-1-1) (2-1). The significance of Jacobellis is to recognize the sharp cleavage in the Court as to what constitutes the “community standard” to be used in applying the Roth test. Two Justices, Brennan and Goldberg, believed that a national standard should be applied, whereas two others, Warren and Clark, believed that there was no provable national standard and that the community requires application of more local standards. There is still no Supreme Court opinion on the point at this time.

It is of further interest to note that in Jacobellis two of the Justices, Black and Douglas, reiterate the absolutist position to which they rigidly adhere throughout these cases that there should be no limitations whatsoever placed on First Amendment rights. Further, they state that if “this Nation is to embark on * * censorship, * * * this [Supreme] Court is about the most inappropriate Supreme Board of Censors that could be found.”

If the employment of the term “social value” as opposed to “social importance” in Roth was ever thought to possess some esoteric distinction, it was dissipated in Jacobellis. Mr. Justice Brennan, who wrote the majority opinion in Roth, stated that “[W]e would reiterate, however, our recognition in Roth that obscenity is excluded from the constitutional protection only because it is ‘utterly without redeeming social importance.’ ”

D.

A BOOK NAMED “JOHN CLELAND’S MEMOIRS OF A WOMAN OF PLEASURE” v. MASSACHUSETTS

A Book Named “John Cleland’s Memoirs of a Woman of Pleasure” v. Massachusetts, 383 U.S. 413, 86 S.Ct. 975, 16 L.Ed.2d 1 (1966) was a suit over a book which was declared obscene by the Massachusetts courts under a state statute. The Supreme Court reversed, but once again there was no agreement on a Court opinion. In this instance the division of the Court was (3-1-1-1) (1-1-1), with the last three opinions constituting separate dissents.

As was pointed out in the previous discussion of Roth and Jacobellis, Memoirs, which actually constitutes no legal precedent as a Supreme Court opinion, is frequently cited in support of the third independent test or prong that must be satisfied for; material to be characterized as obscene, that is, that the material be “utterly without redeeming social value.” In Memoirs “social importance” as pronounced in Jacobellis makes the full transition to a constitutional test of “social value” when it is stated “A book cannot be proscribed unless it is found to be utterly without redeeming social value. * * * Hence, even on the view of the court below that Memoirs possessed only a modicum of social value, its judgment must be reversed as being founded on an erroneous interpretation of a federal constitutional standard.” The rationale was that under Roth “as elaborated in subsequent cases”, the test of obscenity was three-pronged: (1) the material must appeal to prurient interest; (2) be patently offensive and (3) be utterly without redeeming social value. The prevailing opinion stated that even if (1) and (2) were satisfied, failure to meet (3) would be sufficient to defeat any characterization of the material as obscene.

Thus, once material had been characterized as obscene under the “prurient interest” test in Roth and therefore not constitutionally protected, the conclusion of Roth had become a separate, independent test of its own; — was the material in question utterly without redeeming social value? — and this test, if not unqualifiedly satisfied, was held to be sufficient to defeat any determination of obscenity regardless of whether the “prurient interest” test and its offshoot, the “patently offensive” test, were fully met.

Some insight into the difficulties experienced by the Court is discernible, particularly in the dissenting opinions of Justices Clark and White. Both agreed that the formulation of such an “utterly without redeeming social value” test rejected the basic holding of Roth. As Mr. Justice Clark pointed out, his vote was the deciding one in the majority opinion in Roth and was cast solely because the obscenity test was “whether to the average person, applying contemporary community standards, the dominant theme of the material taken as a whole appeals to prurient interest.” Mr. Justice Clark thereafter cited Chaplinsky and stated that in no subsequent court decision of the Supreme Court following Roth had any “utterly without redeeming social value” test been suggested, much less expounded.

The first reference to such a test is actually in Jacobellis, not a Supreme Court majority opinion, where the recitation is that “recognition in Roth that obscenity is excluded from the constitutional protection only because it is ‘utterly without redeeming social importance * * *’” Actually Roth did not say this; what Roth did say was that material determined to constitute obscene utterances under the prurient interest test was material without ideas and therefore without constitutional guaranties. Not because of a social importance or value test, but as a consequence of the prurient interest test in Roth, obscenity was concluded to be utterly without redeeming social importance and was therefore not extended First Amendment protection.

The dissent of Mr. Justice White capsuled the issue and the reasoning well and in proper sequence:

In Roth * * * the Court held a publication to be obscene if its predominant theme appeals to the prurient interest in a manner exceeding customary limits of candor. Material of this kind, the Court said, is ‘utterly without redeeming social importance’ and is therefore unprotected by the First Amendment, (emphasis supplied)

Both Justice Clark and Justice White saw the social importance or value test, not as an independent test of obscenity, but as relevant only to a determination of the predominant prurient interest of the material, a decision which a court or jury will make based on the nature of the material and the evidence in the case.

The significance of Memoirs does not end with the advancement by only a plurality of the Court of a social importance or value test and the sharp reaction against such a test by two of the Justices who had participated in the majority opinion in Roth. The same plurality that fashioned this highly controversial, but subsequently utilized three-pronged test, then proceeded to carve out an exception to this absolute prohibition of a determination of obscenity requiring the material to be “utterly without redeeming social value”. This exception was that when there is evidence from the circumstances of production, sale and publicity that the book was commercially exploited solely for its prurient appeal to the exclusion of all other facts, the conclusion might still be reached that the book was utterly without redeeming social importance, even though the book possessed a minimum of social value. In the case of Memoirs, the obscenity of the book was judged in the abstract without reference to other circumstances. But the indication is clear that there could be circumstances other than the social value of the material per se which might merit consideration in evaluating obscenity in other instances. The prevailing opinion rationalized that this is not really a relaxation of the test that the book must be “utterly without redeeming social value” to qualify as obscene. Rather, reference is made to Ginzburg v. United States, a case decided the same day which concerned pandering, wherein the purveyor’s sole emphasis on the sexually provocative aspects of his publication was accepted by the Court as his evaluation of his own material. Thus, outside factors including the context in which the activity took place would be considered. However, the primary difficulty still remained. The non sequitur from which the utterly without redeeming social value test evolved precluded any determination of obscenity if there was any support at all for the material in question.

The analysis by Mr. Justice Harlan in dissent of this exception fashioned by a plurality of the Court in Memoirs pointed up this virtually impossible situation. It was his view that the tests of obscenity set out in the prevailing opinion created only an illusion of certainty and actually risked confusion and prejudice. Application of the social value test did not permit material to be “weighed against” or “canceled by” the first two tests of obscenity, that is, prurience or patent offensiveness; each had to be assessed separately; and all had to coalesce to permit a determination of obscenity. As Mr. Justice Harlan saw it, the “social value” test was impracticable of application, unless the testimony against the book or material was virtually uncontradicted. Any controversy of significance created a situation requiring a preponderance or other weighing test, and this was forbidden by the very language of the test; thus, as he put it, “it is very hard to see that the ‘utterly without redeeming social value’ test has any meaning at all.”

But that was not all. Mr. Justice-Harlan went on. The prevailing view apparently “believes that the social value of the book may be negated if proof of pandering is present.” If that is so, the use of the inherently vague pandering notion to offset social value “wipes out any certainty” that the “utterly without redeeming social value” test might be given through expert testimony. Justice Harlan believed it much more satisfactory to concede in Memoirs that the book had some social merit and recognize at the same time that it may still be deemed salacious or obscene.

E.

MISHKIN v. NEW YORK AND GINZBURG v. UNITED STATES

Two other decisions emanated from the Supreme Court on the same date as Memoirs, Mishkin v. New York, 383 U.S. 502, 86 S.Ct. 958, 16 L.Ed.2d 56 (1966) and Ginzburg v. United States, 383 U.S. 463, 86 S.Ct. 942, 16 L.Ed.2d 31 (1966). They are of importance here insofar as they are able to shed some light on the vitality of the Roth test and the subsequent efforts to modify or obscure the “prurient interest” test in Roth by the “utterly without redeeming social value” test espoused by three Justices in Memoirs. Both Mishkin (5-1) (1-1-1) and Ginzburg (5) (l-l-l-l) are court opinions. In both majority opinions the Roth test was specifically referred to on numerous occasions, applied and upheld. On the other hand, in neither of the majority opinion was Memoirs or the “social value” test mentioned or footnoted. It is only in the dissenting opinion of Mr. Justice Black in Ginzburg that Memoirs is referred to along with the sharp divergence of views set forth in that opinion as to what tests are required to determine when material is obscene. As to the “utterly without redeeming social value” test, Mr. Justice Black also expressed reservations when he observed in Ginzburg that:

[t] his element seems to me to be as uncertain, if not even more uncertain, than is the unknown substance of the Milky Way.

* * * * -X- *

My conclusion is that certainly after the fourteen separate opinions handed down in these three cases today no person, not even the most learned judge much less a layman, is capable of knowing in advance of an ultimate decision in his particular case by this Court whether certain material comes within the area of ‘obscenity’ as that term is confused by the Court today.

F.

REDRUP v. NEW YORK

It was in 1967 that the next significant Supreme Court pronouncement was forthcoming. Redrup v. New York, 386 U.S. 767, 87 S.Ct. 1414, 18 L.Ed.2d 515 (1967) was a per curiam opinion of seven Justices reversing the lower courts in three cases involving state statutes which regulated distribution of alleged obscene books and picture magazines. Although the Court was divided 7-2 for reversal, it is important to note the basis on which the per curiam opinion concluded: that “[wjhichever of these constitutional views is brought to bear upon the cases before us, it is clear that the judgments cannot stand.”

The per curiam opinion pointed out that two members of the Court consistently adhered to the view that a State had no power to regulate writings or pictures upon the ground of their obscenity. These two Justices are Black and Douglas. The opinion went on to recite that a third Justice believed the state power is narrowly limited to a distinct class of material. This is Justice Stewart and his belief that only hard core pornography can be characterized as obscene. Another Justice has not viewed the “social value” element as an independent factor in the judgment of obscenity. This is the position of Justice White. Two Justices dissented in Redrup, Harlan and Clark. The per curiam opinion then stated somewhat cryptically that “[ojthers have subscribed to a not dissimilar standard, holding that a State may not constitutionally inhibit the distribution of literary material as obscene * * * ” unless the three tests of (1) appeal to prurient interest (2) patently offensive material which is (3) utterly without redeeming social value are present and coalesce, citing Memoirs as authority. By process of elimination the other Justices are Brennan, Warren and Fortas who expressed the same plurality view in Memoirs which was a (3-1-1-1) (1-1-1) split of the Court. As has been pointed out, there was no aetual Court “holding” in Memoirs, nor does Redrwp add legal weight and thrust to these earlier cases. On the contrary, Redrup contains no majority reasoning in deciding a constitutional question, but serves only to point up the solidified divergent views espoused by the Court's members over a considerable period of time, none of which is supported by a majority.

In this context the summary citation of Redrup without further elaboration in various subsequent per curiam memorandum opinions of the Supreme Court is scarcely indicative of any philosophical decision to expand First Amendment protection. Instead, its more obvious meaning from its very language is that, while there is agreement of a majority of the Court that a case should be affirmed or reversed, there is no such agreement at all as to the reasoning for reversal. Similarly, with divergent constitutional views expressed by the Justices in deciding upon reversal, the preliminary elimination of certain specific prohibitions — concern for juveniles, invasion of individual privacy and pandering under the facts in Redrup — constitutes no new set of tests of obscenity to replace or obscure the vitality of the test pronounced in Roth. Rather, such factors can only constitute evidentiary matters which in a proper set of circumstances should be considered in determining obscenity vel non.

G.

STANLEY v. GEORGIA

Subsequent to Redrup the Supreme Court considered the issue of obscenity from a somewhat different viewpoint in Stanley v. Georgia, 394 U.S. 557, 89 S.Ct. 1243, 22 L.Ed.2d 542 (1969). This was a Court opinion in which the Justices divided (6) (3), holding that a state statute was unconstitutional in making a crime the private possession in the home of obscene matter in the form of 8mm home movies. The Court considered Roth and rejected its application to these facts, although the decision unqualifiedly recited that the holding in Roth was not impaired by this case. Roth was not viewed as dealing with the precise point involved in Stanley, the mere private possession of obscenity in the confines of one’s residence as opposed to its public distribution or dissemination.

Much has been made of Stanley by those who would broaden the constitutional protection afforded in obscenity cases. The theory has been advanced that the meaning of Stanley goes far beyond the plain language contained in the case which is that Roth and the cases following it remain intact and that the holding only protects an individual’s right to be free from unwanted governmental intrusion of his privacy. This novel approach has found recent support in certain lower court opinions which, of necessity, warrant examination at this juncture.

Karalexis v. Byrne, 306 F.Supp. 1363 (D.Mass.1969), saw Stanley as severely questioning the inviolate state of Roth. In the opinion of a three-judge court in which a temporary injunction was granted against prosecution of the film entitled “I Am Curious (Yellow),” the court stated:

Yet, with due respect, Roth cannot remain intact, for the Court there had announced that ‘obscenity is not within the area of constitutionally protected speech or press,’ 354 U.S. at 485, 77 S.Ct. at 1309, whereas it held that Stanley’s interest was protected by the First Amendment, and that the fact that the film was ‘devoid of any ideological content’ was irrelevant, (footnotes omitted)

Id. at 1366. The three-judge court felt that Stanley impaired Roth to the extent that restricted distribution, adequately controlled, was no longer to be condemned. As this three-judge court saw it, a logical and necessary reading of the right protected in Stanley would also extend to protect Stanley’s professional supplier of film because the right to possess obscene materials in the home would be meaningless if there were no co-extensive right to produce them. Specifically, it was held that “[i]f a rich Stanley can view a film, or read a book, in his home, a poorer Stanley should be free to visit a protected theater or library. We see no reason for saying he must go alone.”

Still other courts have held that the right to enjoy erotica in the privacy of one’s own home includes the right to get it there. Thus, in United States v. Dellapia, 433 F.2d 1252, (2d Cir. 1970), the conviction of a New York film collector under the Comstock Act for using the mails to exchange stag films with a California couple was reversed. A United States District Court issued a similar holding in United States v. Thirty-Seven Photographs, 309 F.Supp. 36 (C.D.Cal. 1970). This court, however, went much further in its construction of Stanley. The case involved the seizure of thirty-seven photographs carried by claimant in his personal luggage, during a customs inspection following a visit to Europe. The Government sought to enforce forfeiture of the photographs, and the claimant counter-claimed, contending that the photographs were not obscene and that the statute under which the photographs were seized was unconstitutional. Claimant admitted that it was his intention not only to possess the photographs privately, but also to incorporate the pictures into a book for distribution. Notwithstanding the possible commercial exchange of the photographs involved, this three-judge court held that the statute prohibiting all persons from importing obscene materials into the United States was unconstitutional in that it excluded photographs which were to be distributed to adults for use in the privacy of their own homes. Necessarily, this lower court decided that Stanley effectively overruled the statement in Roth that obscenity is not within the protection of the First Amendment.

Karalexis, as a three-judge case was appealed directly to the Supreme Court, and there was anticipation that its disposition would resolve much of the confusion in this legal area. Recently, the Supreme Court issued its opinion in Byrne v. Karalexis, 401 U.S. 216, 91 S.Ct. 777, 27 L.Ed.2d 792 (Feb. 23, 1971), a per curiam Court decision reversing the' three-judge court. However, the reasoning relies on procedural matters which in no way serve to question or undermine the viability of Roth.

With the approach of the three-judge court in Karalexis and its progeny outlined above, the potent arguments to the contrary clearly warrant comment as well. Again, in view of the absence of Supreme Court authority, it becomes necessary to refer to lower court opinions.

A more conservative line of cases limits the significance of the holding in Stanley and accepts the Supreme Court’s pronouncement in Stanley that the facts relate only to private possession of obscene material in the home. The Court of Appeals for the Fifth Circuit, in United States v. Fragus, 422 F.2d 1244 (5th Cir. 1970) and in its supplemental opinion, 428 F.2d 1211 (5th Cir. 1970), so stated and, in addition, expressly declined to adopt the rationale of the court in Thirty-Seven Photographs. In the supplemental opinion the court noted that the Supreme Court had affirmed the holding of a three-judge court in Gable v. Jenkins, 309 F.Supp. 998 (N.D.Ga. 1969) aff’d, 397 U.S. 592, 90 S.Ct. 1351, 25 L.Ed.2d 595 (1970) and, that Stanley v. Georgia did not invalidate a Georgia statute which prohibited the distribution of materials defined as obscene. The reasoning is of some interest. Since Gable affirms the permissibility of state intrastate regulations of obscene material, and since no logical distinction can be made as to federal interstate regulation, Stanley cannot be construed to legitimize the shipment of hard core pornography in interstate commerce in order to have it available for consumption in the privacy of one’s home. The above pronouncement is actually dicta, since the issue before the Court was the propriety of arrest under ordinary criminal processes without a prior judicial determination of obscenity of the material possessed by defendants. The Court in Fragus, as in Milky Way Productions, Inc. v. Leary, 305 F.Supp. 288 (S.D.N.Y.1969), aff’d, 397 U.S. 98, 90 S.Ct. 817, 25 L.Ed.2d 78 (1970), distinguished the case at hand from mass seizures of allegedly obscene writings where no prior judicial determination of obscenity has been effected, A Quantity of Copies of Books v. Kansas, 378 U.S. 205, 84 S.Ct. 1723, 12 L.Ed.2d 809 (1964); Marcus v. Search Warrants, etc., 367 U.S. 717, 81 S.Ct. 1708, 6 L.Ed.2d 1127 (1961). The seizures in Fragus and in Milky Way were not quantity seizures, but merely seizures “of instrumentalities and evidence of the crime for which appellants were indicted and lawfully arrested.”

The same conclusion as to the meaning of Stanley was reached in United States v. Melvin, 419 F.2d 136, 139 (4th Cir. 1969), wherein the court stated that in that case “the Supreme Court merely struck down a statute as unconstitutional insofar as it made criminal the mere private possession of obscene material in one’s own home.” It did not pertain to the congressional power to regulate interstate transportation of obscene material by statute which was at issue in Melvin.

The continued viability of Roth has been recognized. In Palladino v. McBrine, 310 F.Supp. 308 (D.Mass.1970), the convicted seller of obscene magazines urged Karalexis as a basis for the proposition that Stanley had overruled Roth. The Court rejected the argument, citing the precise language of Stanley that “Roth and the cases following that decision are not impaired * * The Court pointed up the distinction made in Stanley that Roth and similar cases related to public commercial dissemination of obscene material, not private possession within the confines of an individual’s home. See also United States v. Ten Erotic Paintings, 311 F.Supp. 884 (D.Md.1970), in which the views in Melvin and Karalexis were analyzed and compared, with the court deciding to follow the interpretation of the former. Of course, in no opinion is Karalexis more thoroughly taken to task than in the dissenting opinion in that very case. For further similar interpretation of Stanley, see ABC Books, Inc. v. Benson, 315 F. Supp. 695, 701 (M.D.Tenn.1970); United States v. A Motion Picture Film Entitled “Pattern of Evil”, 304 F.Supp. 197, 200 (S.D.N.Y.1969) and Delta Book Distributors, Inc. v. Cronvich, 304 F.Supp. 662, 676, (E.D.La.1969), rev’d. in part, vacated and remanded in part sub nom., Perez v. Ledesma, 401 U.S. 82, 91 S.Ct. 674, 27 L.Ed.2d 701 (1971).

There are certain other factors of overriding importance which possess Supreme Court sanction and lay a predicate for an understanding of the State interest in the obscenity area. One of these is to lay to rest any validity to the contention that the element of morality has no place in the decisions in this area of the law. The government interest in regulating obscenity was apparent in Roth, in which the majority opinion cited Chaplinsky v. New Hampshire, to the effect that “any benefit that may be derived from them [the obscene utterances] is clear